CYIL vol. 13 (2022)

KATARÍNA ŠMIGOVÁ CYIL 13 ȍ2022Ȏ that in February 2022 war rage began on a scale that had not taken place on the territory of Europe since World War II. However, as already emphasized, it is necessary to separate the issue of criminal responsibility of an individual from the issue of criminal prosecution of a head of state. Nevertheless, several statements have also already been made that asked issuance of a criminal arrest warrant for President Putin. 68 In this context, however, it is appropriate to repeat that the Rome Statute establishes the irrelevance of official status, but Article 27 of the Rome Statute is legally binding only for the contracting states, or for states that recognize the jurisdiction of the International Criminal Court by their declaration. Ukraine, with its declaration based on Article 12(3) of the Rome Statute recognized the jurisdiction of the International Criminal Court over relevant crimes under international law, but with this declaration it cannot cancel the personal immunities of the highest representatives (head of state, prime minister, minister of foreign affairs) of a third-country (Russia), i.e., a state that is not a party to this international agreement. The customary international obligation of states to respect the immunity of the highest representatives of other states does not directly bind the international judicial body as such, but such a judicial body can act only to the extent given to it by the founding treaty. Furthermore, states as State Parties to the Rome Statute cannot delegate to this established court by this founding treaty more powers than they have themselves. 69 This means that by ratifying this international treaty, states cannot without further ado allow the prosecution of the highest representatives of a state that is not a party to the Rome Statute or has not been committed to such action by the UN Security Council. It is still necessary to perceive Article 27 of the Rome Statute as an article which, although it lays down the irrelevance of official status, is applicable to the contracting parties and thus their high representatives and to states that have recognized the jurisdiction of the International Criminal Court, in the current case to Ukraine and its high state representatives. In relation to third countries, it is still required to apply the personal immunities of their high representatives – unless the situation is referred to the International Criminal Court by the UN Security Council. Although Ukraine recognized the jurisdiction of the ICC, i.e., the ICC can prosecute crimes committed on its territory, it cannot rule that third-party officials do not have personal immunities, which only contracting parties have implicitly withdrawn by ratifying the Rome Statute. It is important to emphasize the above in relation to Article 21 of the Rome Statute, which governs the applicable law, and which provides that the Court shall first apply its Statute, the Elements of Crimes, and its Rules of Procedure and Evidence. In relation to the current Russian president Vladimir Putin, it is therefore appropriate to emphasize that he is currently prosecutable at the international level only under the condition that the relevant international criminal court authority would be established by the UN Security Council acting on the basis of Chapter VII of the UN Charter (formerly the ICTY and ICTR ad hoc tribunals, see Milosević case) or in the case of the International Criminal Court in a situation referred to this judicial body by the UN Security Council (which is foreseen by the Rome Statute of the ICC itself and which happened in the case of

68 See e.g., the statement of ex-prosecutor of ICTYCarla del Ponte available at https://edition.cnn.com/2022/03/16/ politics/biden-calls-putin-a-war-criminal/index.html last accessed 1 June 2022. 69 Nemo plus iuris ad alium transferre potest quam ipse habet .

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